In February, the Government passed laws allowing employees the right to disconnect from work. These laws came into effect on Monday 26 August 2024, giving employees the right to refuse to monitor, read or respond to contact outside work hours, unless refusal is unreasonable.
"It does not prevent an employer from attempting contact; rather, employees have a workplace right to not accept that contact or to not respond outside of hours, and the employer cannot take disciplinary or other action against that employee because of the refusal, if the refusal not unreasonable," Deanna McMaster, Partner with law firm MinterEllison, told The SOURCE.
Partner
MinterEllison
"Aged care providers should be thinking about the types of contact they have with workers.
"Staff should be encouraged to consider before they contact an off-shift worker, the following questions:
- Can a different worker who is on shift resolve the issue instead?
- Is the issue urgent, or can the contact wait until the worker is on shift?
- Is the worker on-call and are they paid an on-call or other allowance?
- What level of disruption will the contact cause?
- Is there a less disruptive form of contact (eg text message vs phone call)?
- Does the worker have personal circumstances (such as family or caring responsibilities) which will be impacted by the contact?
- How often has the worker been disturbed while not on shift?
"Aged care providers also need to be aware of the psychosocial safety obligations to their workers, including the impact that out-of-hours contact can have on workers."
A practical example could be a personal care worker in an aged care facility who leaves work at 3pm to collect her kids from school. At 4pm her manager tries to contact her to arrange the Christmas holiday roster, but the employee ignores the call. The manager wants to finalise the matter that afternoon and calls again, leaving angry messages. In this situation, the aged care worker would probably have the right to ignore the calls.
Deanna said in this scenario a number of factors make the aged care worker's refusal to respond to attempted contact probably reasonable: the reason for contact was not urgent and did not require a response that afternoon (even if the manager wanted to finalise the roster that afternoon), the aged care worker is not compensated for the time answering the manager's calls, the repeated calls and angry messages were not reasonable, and the worker has family responsibilities at the time the manager called.
In this hypothetical, the employer probably could not take action against the personal care worker for refusing to respond.
